Alhaji A. Ahamadu V. Attorney-general, Rivers State & Ors (1996)
LawGlobal-Hub Lead Judgment Report
KATSINA-ALU, J.C.A.
The plaintiff Alhaji A. Ahamadu instituted an action in the Rivers State High Court against the Attorney-General of Rivers State, Rivers State Housing and Property Development Authority and Mr. Pepple Owen Solomon in respect of the property situate at No. 139 Victoria Street, Port Harcourt. The plaintiff claimed against the defendants jointly and severally for:
“(a) A declaration that the property in dispute had been validly approved for sale to the plaintiff.
(b) An order directing the Housing and Property Development Authority to communicate to the plaintiff the value of the property in dispute so that the plaintiff can pay for same.
(c) A declaration that the purported sale of the property in dispute by the Abandoned Property Implementation Committee in 1978 to Mr. Pepple is null, void and of no effect whatsoever since the said property was never an abandoned property at the time of the purported sale and as a result the Certificate of Occupancy purportedly issued by the Military Governor of Rivers State to Mr. Pepple in respect of the property in dispute which is registered as No. 36 at page 36 in Volume 138 at the Lands Registry, Port Harcourt as well as the statutory right of occupancy purportedly issued are null, void and of no effect whatsoever as a result of the aforesaid null and invalid sale.”
After pleadings were filed and exchanged but before the case proceeded to trial, the plaintiff filed a motion on notice praying for:-
“An order of interlocutory injunction restraining the 3rd defendant/respondent whether by himself, his agents, servants, privies or howsoever from exercising or purporting to exercise his right as owner and or landlord of the property in dispute i.e. 139 Victoria Street, Port Harcourt including the following:-
(i) The right to institute any proceedings against any of the tenants in the property in dispute in any law court, tribunal or any other judicial body established by law.
(ii) If any such proceedings had been instituted against any such tenant, then the right to continue prosecuting such a proceedings.
(iii) The right to put in and/or eject any tenant from the aforesaid property.
(iv) The right to demand and collect rents from any of the tenants in the property; and
(v) The purported exercise of any right whatsoever as owner and/or landlord of the property in dispute pending the determination of this suit.”
The motion was supported by a 17 paragraph affidavit. The 1st and 3rd defendants who opposed the application filed 16 and 17 paragraph counter-affidavits respectively. The matter came before Charles-Granville, J., for hearing. After hearing arguments and submissions of learned counsel for the parties, the learned trial Judge in his ruling of 19th of January, 1993 refused to grant the order sought. This appeal is from that ruling.
The plaintiff, who will hereinafter be referred to as the appellant, filed two original grounds of appeal and with the leave of this court two additional grounds of appeal. The Additional grounds of appeal were numbered 3 and 4. The Grounds of appeal altogether read as follows:-
- The learned trial Judge erred in law in refusing to grant an injunction restraining the respondents when there was abundant legally admissible Affidavit Evidence before him that it is Just and convenient to do so.
Particulars of Error
(1) There was unchallenged averment on the affidavit of the appellant that the injury he may suffer if an order of injunction against the respondent was not made will not be irreparable and will be adequately met by the award of damages.
(2) There was affidavit evidence that the appellant has been in possession of the premises since 1984.
(3) There was evidence that the appellant, apart from being in physical possession, has been in charge of the maintenance and use of the premises which said right is now being threatened by the acts of the respondent.
(4) That by Section 25(1) of the High Court Law Cap. 61 1963 the Court may in all cases where it is just and convenient endeavour to grant an injunction to keep matters in status quo pending the determination of all the issues involved in the substantive suit.
- The learned trial Judge erred in law in refusing to grant the injunction sought against the 3rd respondent when there was evidence that the appellant will suffer irreparable injury should the order be refused and no monetary compensation will be adequate.
Particulars of Error
(a) There was evidence that the appellant will suffer untold hardship if the respondents are not restrained and they continue in their acts complained of.
(b) There were averments as to the nature of the injury which the appellant is likely to suffer if the order of injunction is refused.
(c) That the averments show that money cannot be an adequate compensation to the appellant.
(d) There was no evidence on the contrary from the respondents’ averments showing that the balance of convenience is in favour of the respondents.
- Error in law
The learned trial Judge erred in law when he concluded that/the, prayer for interlocutory injunction has no relationship or did not arise from the substantive suit and for that reason was incompetent, when on the contrary the interlocutory reliefs took their root from the main action.
Particulars of Error
(i) By holding that the prayer of Interlocutory injunction were not properly before the court, the learned trial Judge failed to advert to the real reliefs claimed by the appellant in the substantive suit.
(ii) A comparison of the substantive reliefs with the interlocutory reliefs show crystal clear that they are intertwined.
(iii) By so holding, the learned trial Judge failed to accord a proper evaluation and consideration to the appellant’s case.
(iv) The interlocutory injunction ought to have been granted.
- The learned trial Judge erred in law when he refused to grant the applicant’s relief inspite of the fact that the affidavit evidence before him disclosed a deserving case to grant the relief sought and by failing so to grant, occasioned inconveniences and injustice to the appellant.
Particulars of Error
(i) The appellant’s affidavit disclosed that there existed substantial questions or issues for determination at the hearing and that the applicant had a legal right worth protecting.
(ii) When carefully examined the appellant affidavit evidence disclosed that the balance of convenience (is on his side).
(iii) The Trial Court ought to have exercised his discretion based on the existing material in the applicant’s favour.
Based on the grounds of appeal filed, the appellant formulated two issues for determination in this appeal which read as follows:-
“(1) Whether the learned trial Judge was correct, when he pre-emptorily roiled the entire application for interlocutory injunction as incompetent on the ground that there was no identifiable nexus between the application for interlocutory injunction and the substantive suit?
(2) Whether the learned trial Judge properly exercised his discretion when in the face of compelling facts and material before him, he refused the appellant’s relief for interlocutory injunction?”
For his part, the 3rd defendant, who will hereinafter be referred to as the 3rd respondent, also raised two issues for determination? These are:-
“(i) was the learned trial Judge right in refusing the application for interlocutory injunction taking into consideration the general circumstances of the application.
(ii) Did the learned trial Judge rightly dismiss the motion on the ground inter alia that the application could not be supported by the claims in the substantive suit?”
The issues formulated by the appellant and 3rd respondent were identical in substance. I shall however treat the issues as raised by the appellant.
The first issue raises the question of the incompetence of the application for interlocutory injunction on the ground that there was no identifiable nexus between the application and the substantive claim. The learned trial Judge in his ruling at page 112 of the record said:-
“Following the decision in Adewale Construction Company Ltd. v. I.B.W.A. (supra) at page 507, I hold the view also that an application for interlocutory injunction must be predicated upon an action pending in the court, and where pleadings have been ordered, considered against the background of the parties pleadings and the writ of summons and of course with the affidavit and counter affidavit occupying a pivotal position…”
At page 114 the learned Judge found, after considering the case of the parties as follows:-
“I do not find any difficulty in holding that the case put forward by the applicant in this application do not correspond with any of the reliefs in the applicant’s writ of summons and the statement of claim, although an applicant can properly” obtain an order of interlocutory injunction even though he has not made out a case that will necessarily entitle him to one of perpetual injunction – See: Globe Fishing industries Ltd. v. Coker (supra) at page 293 paragraph F-G.”
This finding has been attacked by the appellant. The case of the appellant in the substantive action is in effect one of title to the property in dispute. His case is that prior to the institution of this action, he had lived on the property in question for many years and that he still lives on the property. That the property is state land. Sometime in 1982 he applied to the Rivers State Government to purchase same. On 3rd of September, 1993, the then Governor of the Rivers State approved the sale of the property in dispute to him. In effect therefore his claim is that he has the right to ownership, use and possession of the said property having had it validly approved for sale to him by the State-Government. The learned trial Judge himself found this to be so. For at page 112 of the record he said:-
“The applicant claims the legal right over the property in dispute i.e. No. 139 Victoria Street, Port Harcourt…”
It has been submitted for the appellant that when the above finding juxtaposed with the appellant’s third relief in the statement of claim and writ of summons which in effect is asking for a declaration discrediting or annulling any assumed or purported rights claimed by the 3rd respondent over the property, it becomes transparently clear that the effect of the prayer for interlocutory injunction is to keep the substantive relief alive, for it will be a worthless exercise if at the end of the proceedings, the 3rd respondent, having been left unfettered perfects his title, by engaging in acts synonymous with ownership. It was further submitted that the prayer for injunction is a lawful interlocutory consequence of all the reliefs sought in statement of claim.
It was also the contention of the appellant that the view held by the learned trial Judge that the prayer for interlocutory injunction does not relate to any of the reliefs in the statement of claim, was an overt, over simplification of the legal requirement as accurately presented in the following cases:-
- A.G. of Anambra State v. Okafor (1992) NWLR (Pt.224) 396 at 430
- Adewale Construction Company Ltd. v. I.B.W.A. (1991) 7 NWLR (Pt.204) 498 at 507
- Okoya & Ors v. Santilli (1991) 7 NWLR (Pt.206) 753 at 765.
- Ladoke v. Olobayo (1992) 8 NWLR (Pt.261) 605 at 624.
which clearly state that an interlocutory application should be based upon, or relate to or be founded upon the substantive suit. It was argued that the learned trial Judge was in error to have equated the legal requirement to mean that the interlocutory order of injunction must be reflected in the substantive suit or that the applicant must have asked for one form of a permanent injunction or the other before asking for an interlocutory injunction. What is more Order 33 rule (1) of the High Court Civil Procedure Rules under which the applicant brought the application empowers a party to apply for an interlocutory injunction even though a claim for injunction is not included in the party’s action. It was submitted therefore that the application for interlocutory injunction took its root from the substantive reliefs.
For the 3rd respondent it was submitted that an interlocutory injunction cannot be granted when there is no pending action in injunction before the court. Learned counsel for the 3rd respondent relied on the cases of Adewale Construction Co. Ltd. v. I.B.W.A. (1991) 7 NWLR (Pt.204) 498 at 505; Okoya v. Santilli (1991) 7 NWLR (Pt.206) 753 at765; Ladoke v. Olobayo (1992) 8 NWLR (Pt.261) 605 at 624. It has been said that from the state of the pleadings the appellant does not have any action for injunction pending before the learned trial Judge and consequently has no plank upon which to pray for an interlocutory injunction.
This application the subject matter of this appeal was made under Order 33 rule 1(1) of the Rivers State High Court (Civil Procedure) Rules 1987. Rule 1(1) state as follows:-
“An application for the grant of an injunction may be made by any party to an action before or after the trial of the action, whether or not a claim for injunction was included in the party’s action.”
Under the High Court Rules therefore an application for the grant of an injunction may be made to the court of trial even though a prayer for an injunction is not included in the statement of claim.More importantly, it is the law that an interlocutory order pending the determination of a suit or appeal must relate to the issue before the court of trial or the appeal yet to be determined. See: A.G. Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396; Adewale Constr. Co. Ltd. v. I.B.W.A. (1991) 7 (Pt.204) 498; Ladoke V. Olobayo (1992) 8 NWLR (Pt.261) 605. It would be wrong in law to stay an action not before the court since such an order will simply hang in the air. This is good law and good sense. In order therefore to determine whether an order of injunction relates to the subject matter of the action, it will be pertinent to critically examine the claims submitted to the court for adjudication.The appellant’s claim before the trial court, yet to be determined, is for the legal right over the property in dispute i.e. No. 139 Victoria Street, Port Harcourt. In the course of his ruling the learned trial Judge accurately put it at page 112 of the records thus:-
“The applicant claims the legal right over the property in dispute i.e. No. 139 Victoria Street, Port Harcourt in the sense that he says he had the right to ownership, use and possession of the said property having had it validly approved for sale to him by the Rivers State Government.”
The appellant went further in his third relief to challenge the purported sale to the 3rd respondent. In effect, it was his case that the purported sale to the 3rd respondent was fraudulent and illegal and must be declared null and void. He has pleaded in paragraph 3 of his statement of claim that he had been living in the property in dispute for several years before his application in 1982 to the Rivers State Government to purchase the property in question. Consequently upon the approval by the State Government of the sale of the said property to him, the plaintiff erected a block fence around the property (See paragraph 8 of the Statement of Claim). The plaintiff further still pleaded to the effect that there were other tenants in the property all of who were directed to pay rents directly to the Government by a letter dated 5th April, 1988. (See Paragraph 10 (e)(ii) of the Statement of Claim. In paragraph 10 (h) (i) the plaintiff averred that “Pepple is about to commence proceedings in the Rent Tribunal to eject plaintiff. Copies of the relevant notice will be relied upon.”
In the light of the pleadings it seemed only right that a prudent plaintiff would bring an application for interlocutory injunction to stop the 3rd respondent from exercising any right whatsoever as owner and/or landlord of the property pending the determination of the substantive action. It would be base argument to suggest that the appellant should leave the 3rd respondent unfettered to engage in act synonymous with ownership and thus risk being evicted by the 3rd respondent, vi et armis, if need be, from the property in dispute. One must not lose sight of the fact that more than one year after the institution of this suit, the 3rd respondent obtained judgment against one of the tenants one Mr. Oba Moses at the Port Harcourt Rent Tribunal in November, 1991 and proceeded to execute same in December, 1991. In the circumstance, I am in complete agreement with learned counsel for the appellant that the prayer for injunction cannot and ought not to be seen in any other way, than that it is a lawful interlocutory consequence of all the reliefs sought in the statement of claim. Simply put, the interlocutory order relates to and is founded on the claim before the trial court. All that the appellant, who claims legal right to the property in dispute has done, was to apply to the trial court to keep the matter in status quo pending the determination of the substantive claim. The first issue therefore succeeds.
I now turn to the second issue which is whether the learned trial Judge properly exercised his discretion when in the face of compelling facts and materials before him he refused the appellant’s relief for interlocutory injunction. For the appellant it was argued that the appellant satisfied the conditions for the grant of an order of injunction in his favour. It was said that the appellant had established that there was a serious question to be tried at the hearing. Further it was pointed out that the appellant had sufficiently shown that the balance of convenience was in his favour. It was added that the appellant had undertaken to pay damages if his application was found to be frivolous. Learned counsel relied on the cases of Obeya Memorial Hospital v. A.G. Federation (1987) 3 NWLR (Pt.60) 325; Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419.
On the first issue, it was pointed out that the compliant of the appellant was that the property in question was allocated to him by the Government of Rivers State and that the 3rd respondent’s claim was spurious as the property was not and could not be classified as an abandoned property, since the Rivers State Government was the beneficiary of the reversionary right of the cancelled lease on the property, which stood on state land. In the circumstances, the property of Rivers State Government could not be classified as an abandoned property which could have brought it within the jurisdiction of the Abandoned Property Implementation Committee. Hence, the title claimed by the 3rd respondent, having been derived from a sale by the said Abandoned Property Implementation Committee was a nullity. Learned counsel for the appellant therefore submitted that these are weighty legal issues which disclose the existence of a legal right is presently being threatened. Counsel relied on the case of Kotoye v. C.B.N. (supra); Obeya Memorial Hospital v. A.G. Federation (supra).
On the issue of balance of convenience it was the contention of the appellant that the lower court’s approach ran counter to the strict guidelines laid down by the Supreme Court and this court, in the determination of applications of this nature. It was submitted that the learned trial Judge in holding that the balance of convenience was not in favour of the appellant took into account irrelevant matters which were not supported by the affidavits before him. I shall refer to specific instances in this regard later in the judgment.
For the respondent, it was submitted that taking into consideration all the circumstances surrounding the application, the learned trial Judge rightly refused to make an order of interlocutory injunction. It was pointed out that the principles guiding the grant or refusal of an interlocutory injunction are clearly expounded in the case of Adewale Constr. Co. Ltd. v. I.B.WA. (1991) 7 NWLR (Pt.204) 498 at 505. These include first, that applicant must establish the existence of a legal right which is being threatened; secondly, that the balance of convenience is in his favour and thirdly, that the applicant must give an undertaking as to damages if his application is found to be frivolous. See: also A.C.B. v. Awogboro (1991) 2 NWLR (Pt.176) 711; Nig. Cement Co. Ltd. v. N.R.C. (1992) 1 NWLR (Pt. 220) 747. It was submitted that the appellant did not satisfy these conditions except the one dealing with an undertaking as to damages. It was however argued that this alone cannot sustain the grant of an interlocutory injunction. The other factors must be met simultaneously.
In Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419, the Supreme Court laid down certain principles to be taken into consideration by the courts in an application for interlocutory injunction. These include:
(1) The applicant must establish a serious issue to be tried.
(2) The applicant must show that the balance of convenience is in his favour.
(3) The applicant must show that monetary damages will not be an adequate compensation for the injury from the violation of his right if he succeeds in the action.
(4) The applicant must give an undertaking as to damages.
See: also Obeya Memorial Hospital v. A.G. Federation (1987) 3 NWLR (Pt.60) 325.
The grant or refusal to grant an interlocutory injunction is at the discretion of the court. That discretion must be exercised judicially. Although it is impossible to lay down any general rule regulating the exercise of the court’s discretion in a case, it must be borne in mind however that interlocutory injunctions are not granted as a matter of grace or routine. On the contrary, the injunction is granted only in deserving cases based on law and facts. See: A.C.B. v. Awogboro (1991) 2 NWLR (Pt.176) 711. Clearly, therefore an applicant in an application of this nature must establish before the court that there is a serious issue to be tried at the hearing. Once he has done that, the trial court will then proceed to consider the balance, of convenience.Of course, the burden of proof is on the applicant to establish that the balance of convenience is on his side. When an applicant satisfies these conditions, he is unquestionably entitled to an order of interlocutory injunction pending the determination of the substantive action. The reason is obvious; the object or purpose of the injunction is to maintain the status quo pending determination on the merits.
Now in the course of his ruling, the learned trial Judge stated at page 112 lines 19-21 thus:-
“The applicant claims the legal right over the property in dispute i.e. No. 139 Victoria Street, Port Harcourt…”
and at page 113 lines 12-30, the learned trial Judge continued as follows:-
“From the applicant’s contention in this application as I have set out above, I am being called upon by the applicant to determine his legal right to the property in dispute. The Supreme Court held in Obeya Memorial Hospital v. A.G. of the Federation supra that in considering an application for interlocutory injunction, it is not necessary to determine the legal right to a claim since at that stage there can be no such determination, because the case has not been heard on its merits. This being the case, I shall reserve the issue of determining the legal right to the property, between the parties for the substantive stage of hearing as the facts upon which both parties intend to rely on in proving it have already been pleaded in the various paragraphs of the pleadings and affidavits I have mentioned. This is so as I cannot at this stage do anything to prejudice or compromise the substantive suit.”
(Italics mine for emphasis).
Although the learned trial Judge did not say so in so many words, it is crystal clear he found as a fact that the appellant had made out a serious issue of title to be tried at the hearing. This is evident from his pleadings and the affidavit. The respondent on the other hand vehemently opposed the appellant’s claim of a legal right to the property situate at No. 139 Victoria Street, Port Harcourt. This is manifest from his pleadings and the counter-affidavit. Surely as the learned trial Judge himself said, this is an issue that can only be resolved after a due trial on the merits. In Obeya Memorial Hospital v. A.G. Federation (supra), the Supreme Court per Obaseki, J.S.C. said at page 338:
“When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be a violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when exhypothesis, the existence of the right or the violation of it or both is uncertain and will remain uncertain until final judgment is given in the action.”On the question of balance of convenience the learned trial Judge said at pages 115 to 116 of the record thus:-
“I agree with learned counsel for the defendant that throughout the applicant’s affidavit he never deposed to what damage he will suffer if the injunction is not granted. It is my view that if the plaintiff succeeds in his claim at the end of the trial he can be adequately compensated in damages with regards to the rents now collected by the defendant. On the other hand, the 3rd respondent in paragraph 16 of his counter-affidavit had deposed to the fact that he will suffer great inconvenience if he is restrained from enjoying his property, moreso when the applicant is not asking for rents to be paid to him; or to a receiver or to the court. It is trite law that the court does nothing in vain; and it will not engage in a mere academic exercise, by making a declaration that will be of no practical benefit to any of the parties. See: the case of Adedeji v. Supra page 221 paragraphs B-C. If the applicant succeeds at the trial, he can still get all the reliefs he is claiming, but if the 3rd respondent” is restrained from controlling the property, he will suffer irreparable damage in that his inability to control and maintain the property will make it fall into a total state of disrepair which cannot be adequately compensated for in monetary damages.”The learned trial Judge had earlier on concluded at page 115 lines 6-12 that:-
“From the relief claimed in paragraph C of the endorsement on the writ of summons and the state of the affidavit evidence before me, it is clear that the status quo ante litem is that the 3rd defendant/respondent has been in possession of the property, collecting rents therefrom, and ejecting tenants thereof since 1978.”
Firstly, this finding is erroneous. It is not based upon the material before the lower court. Relief C referred to which has already been reproduced does not state nor does it imply that the 3rd respondent had been in possession of the property in dispute since 1978. At any rate, throughout his statement of defence the 3rd respondent did not plead that he was living on the property. Neither did he aver in his counter-affidavit that he was living on the property and/or collecting rents in respect of the disputed premises since 1978. On the contrary, the appellant in his pleadings and the affidavit in support of the motion stated clearly that he had been living on the property long before 1982 when he applied to buy it. He made it abundantly clear that between 1978 and 1984 he and the others were paying rent to one Dick-Fiberesima, a representative of the State Government until the State Government directed the tenants in 1988 to pay rent directly to Government. I think the fact that the appellant is a tenant in respect of the property, and this has not been disputed by the 3rd respondent, imposes a duty on the court to protect the appellant’s tenancy rights during the pendency of the action. This is so because it is settled law that a tenant has a right to the peaceable enjoyment of the property let to him. See: Praying Band of the Sacred Society of Cherubim and Seraphim & Ors. v. Udokwu (1991) 3 NWLR (Pt.182) 716.
Secondly, the finding that it will amount to injustice and inconvenience if the 3rd respondent is denied the opportunity of collecting rent proceeds as the plaintiff did not claim the rents for himself or apply that the rents be paid Into court or that the court appoint a receiver overlooks the provisions of Order 33 rule 8 of the River State High Court (Civil Procedure) Rules, 1988 which allows the court to order payment of the proceeds of rent on the property to any of the parties. More importantly the court also has powers to suo motu order payment of rents into court.
In any event, the collection of the rents does not represent the proper factor for the consideration of the issue of balance of convenience. The point in issue is the fact that allowing the 3rd respondent to exercise diverse acts of ownership such as collection of rents, ejectment of tenants etc, will go to strengthen his claim on the property and conversely weaken the appellant’s claim by leaving him guilty of laches and standing by. Surely, the appellant who lives on the property stands the risk of being ejected himself if he does not take steps to restrain the 3rd respondent from acting as if he has already been adjudged by the court the owner of the property in question.
The question of balance of convenience is determined by identifying which of the parties stands to lose more if the status quo ante is not maintained. In Obeya Memorial Hospital v. A.G. Federation (supra) the Supreme Court succinctly put it in the following terms:-
The effect of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s needs for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented exercising his own legal rights for which he would not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where the ‘balance of convenience’ lies”.
It is necessary to restate here that in an application for an interlocutory injunction, it is not necessary for the applicant to prove a proprietary interest in the property to be protected by the injunction; all that he has to prove is lawful occupation with authority of the owner. See: Obeya Memorial Hospital v. A.G. Federation (supra). I Furthermore, in an application of this nature, that is to say, an application for interlocutory injunction, it is not necessary that the plaintiff/applicant should make out a case as he would do on the merits, it being sufficient that he should establish that there is a substantial issue to be tried at the hearing. See: Kufeji v. Kogbe (1961) All NLR 113.As I have already indicated, the appellant gave an undertaking as to damages. This was conceded by the 3rd respondent. At page 8 of the 3rd respondent’s brief, he said:-
“On the aspect of undertaking as to damages, in all fairness to the applicant this was satisfied, but it is my submission that this alone cannot sustain the grant of an interlocutory injunction. Other factors must be met simultaneously.”
It is apparent that the sufficiency of the undertaking was not in dispute.
On the facts before the court of trial, there is a serious question to be tried at the hearing. Therefore, the burden of proof on the appellant has been discharged. Again on the facts of this case, the balance of convenience is clearly in favour of the appellant because he who has been living on the property since before 1982, stands the risk of being evicted by the 3rd respondent who himself does not live on the property. There is also evidence before the court that the appellant made improvements on the property by constructing a block fence around it. The learned trial Judge was in the circumstances clearly in error when he refused to grant the injunction sought by the appellant.
In the result, this appeal succeeds and is hereby allowed. The decision of Charles-Granville J., delivered on the 19th day of January, 1993 is hereby set aside and in its stead, I make the following order:
“The 3rd respondent by himself, his agents, servants, privies or howsoever, is hereby restrained from exercising or purporting to exercise any right of ownership and/or landlord of the property in dispute i.e. No. 139 Victoria Street, Port Harcourt including the following:-
(i) The right to institute any proceedings against any of the tenants in the property in dispute in any law court, tribunal or any other judicial body established by law;
(ii) The right to put in and/or eject any tenant from the aforesaid property;
(iii) The right to demand and collect rents from any of the tenants in the said property; and
(iv) The exercise of any right whatsoever as owner and/or landlord of the property in dispute, pending the determination of the substantive action.
The appellant is entitled to costs in this appeal assessed at N3, 000.00.
Other Citations: (1996)LCN/0241(CA)
